¶1I concur in the result upon a shorter ground.
¶2The parties got to an issue upon the allegation by the „ defendants, in a rejoinder to a replication of the plaintiff, that shortly after the fire, and long before the lease would by its terms expire, the plaintiff requested the defendants to vacate, and promised them that if they would vacate by a certain date, he would charge them no rent after October 1, 1893. All the issues were found for the defendants.
¶3Under the old practice, by which each issue was separately found, and so appeared on the record, if all material issues were found for the plaintiff, and one or more immaterial issues found for the defendant, the plaintiff might have judgment non obstante veredicto. Tidd’s Practice, 575, 921.
¶4But if with some good pleas, all the issues are found for the defendant, no judgment can be entered for the plaintiff because of any bad pleading by the defendant. Hitchcock v. Haight, 2 Gilm. 604,
¶5Whether the defense pleaded was a good defense or not is a question which, never having been propounded to the court below, that court could not have erred upon; and this court is but a court of review. Whether the defense is good or not, is not a question on a motion for a new trial based upon alleged want or weight of evidence; or errors committed during the trial. Nothing in the motion questioned the sufficiency of the rejoinder.
¶6The whole argument of the plaintiff, if good, that the matter of the rejoinder was bad, as being an attempt to vary by parol a contract under seal, should have been addressed to the court below on demurrer to that rejoinder, and would be of no avail on this writ of error, if the insufficiency of that rejoinder were—which it is not—assigned for error.